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Historian Alexandra Stern Reflects on Landmark Ruling for Native Americans

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The Supreme Court ruled that Oklahoma state authorities do not have the authority to prosecute criminal cases involving Native Americans on their tribal lands.

Earlier this month, the Supreme Court ruled that half of the state of Oklahoma is within sovereign Indian Country, a historic decision that brought Native Americans a hard-sought victory clarifying the status of their lands, one that could also have long-term impact on criminal justice.


The case resulted from the state-level conviction of Jimcy McGirt, a Seminole man who was found guilty of crimes that occurred within the Muscogee (Creek) Nation’s historical boundaries. McGirt claimed that the state of Oklahoma had no right to prosecute him, arguing that Congress had created the reservation and had never dissolved the sovereignty of the Creek Nation over the area.

For historian Alexandra Stern, a former Stanford Humanities Center fellow who has researched these issues as part of her dissertation, The Darker Side of E Pluribus Unum: The Unraveling of Indian Territory and the Reconstruction of Native America, 1860–1907, the ruling is especially exciting—one that may be the most important federal Indian law case of the last 50 years. Stern recently shared her thoughts, having worked with the Creek Nation’s attorneys to prepare for this case.

 

What are the actual effects of this ruling? For Native Americans as well as non-Natives?

The Court has ruled 5-4 that the Muscogee Creek Nation’s territory in eastern Oklahoma, as delineated by its 1866 Reconstruction treaty with the United States, was never explicitly diminished by Congress. That land, for the purpose of the Major Crimes Act, remains a reservation and thus the state of Oklahoma exceeded its jurisdiction in trying Jimcy McGirt and also Patrick Murphy (Sharp v. Murphy), a member of the Creek Nation who was convicted of murder in eastern Oklahoma. The decision restores the Creek Nation’s jurisdictional sovereignty, meaning Native people on the reservation are subject to tribal and federal law, but not state law.

While the state of Oklahoma previously argued that such a ruling would result in the release of thousands of dangerous criminals, this is not the case. You’re not going to see a flood of automatic releases. Instead a proportionally small number of individuals will have their cases re-prosecuted in federal or tribal court.

With its jurisdictional sovereignty restored, the Creek Nation will be better able to protect its citizens. I, along with other scholars and activists, see this power being particularly important in cases of the abuse, murder, and disappearance of Native women, a critical issue throughout Indian Country today. By regaining its jurisdiction, the Creek Nation can pursue these crimes in tribal court without waiting for the federal government to take action, which it is often slow to do in such cases.

The land in question, approximately 3 million acres, includes the majority of the state’s second largest city (Tulsa), but the decision will likely have very little effect on the day-to-day life of non-Native people living in the area as they remain subject to state law. The decision only returns jurisdiction to the Creek Nation in cases involving Native participants; tribal governments generally lack jurisdiction over non-Natives even on reservation land. Oklahoma already has a number of intergovernmental agreements with tribes, including the Creek Nation and will work out a framework for shared jurisdiction now.

 

"This is such a beautiful thing to see because for so long the Court has made decisions in federal Indian law cases based not on the terms of treaty agreements as written, but on interpretations of what historical policymakers intended in relation to the tribes."

 

While Chief Justice John Roberts’ dissent foresees extensive upheaval both in terms of criminal jurisdiction and the implications of the decision for zoning, taxation, and other regulation in eastern Oklahoma, I think this interpretation is based on fear rather than evidence. Tribal governments throughout the U.S. have and maintain productive relationships with state and federal authorities for the benefit of everyone and have very little control over non-Native peoples even on their own land.
 

How did you work with the Creek Nation’s attorneys to prepare for this case?

I worked with Kanji & Katzen, the firm that represented the Creek Nation before the Court, back when the case before the Court was Sharp v. Murphy, the Court’s first attempt to resolve the question of the status of Creek Nation’s reservation. Collaborating with David Giampetroni, I shared findings and sources from my archival research in Oklahoma, particularly the Western History Collection at the University of Oklahoma, as well as answered questions on the peculiarities in the Creek Nation’s history with the United States.

In federal Indian law cases, lawyers and historians are often working with the same documents (e.g. treaties), so historians like myself can be quite helpful even without formal legal training.

The focal point of our conversations were three key turning points in the Five Tribes’ histories: their 1830s removal treaties with the U.S., their 1866 treaties with the U.S., and the Oklahoma and Sequoyah statehood movements, which also happened to be key turning points in my dissertation on the long process of Reconstruction in Indian Territory. At the time, the firm was particularly interested in pushing back against the argument that the continued existence of reservations and tribal government was understood by the Creek as incompatible with statehood. While it might look that way on the surface, this was where I was able to contribute having spent a lot of time with primary sources on this exact issue, including the papers of Pleasant Porter who was the last elected Principal Chief of the Creek Nation before his death in 1907.

Even when eastern Indian Territory joined Oklahoma Territory at the very beginning of the twentieth century, the Creek and other Five Tribes never questioned their own sovereignty, only the best way to preserve it.
 

Were you surprised by the Supreme Court's decision?

I was surprised but delighted by the clarity and strength of the decision in favor of the Creek Nation. I had anticipated, based on the Court’s history, at best we were going to see some kind of compromise despite the fact the historical record is very clear that Congress never explicitly diminished the Five Tribes’ reservations in Indian Territory.

But the majority opinion, written by Justice Gorsuch, very clearly upholds the Creek Nation’s treaty rights: “On the far end of the Trail of Tears was a promise…Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”

Showcasing Justice Gorsuch’s textualist jurisprudence, the opinion also demonstrates a much greater mastery of Native history and an attention to Native perspectives than has been seen on the Court in many years. The decision is clearly based on a careful reading of the law as expressed in treaty agreements and by Congress, rather than the history of the progressive dispossession of Native peoples in Indian Territory.

This is such a beautiful thing to see because for so long the Court has made decisions in federal Indian law cases based not on the terms of treaty agreements as written, but on interpretations of what historical policymakers intended in relation to the tribes.

In McGirt v. Oklahoma, however, Justice Gorsuch powerfully disavows that tradition: “The arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.”

For me, the decision is entirely consistent with the written historical record—it’s clear Congress never de-established the Five Tribes’ reservations—but it’s still rare to see the Court prioritize that evidence over the perceived implications and associated disruptions that recognizing tribal sovereignty may have.
 

Do you think this will have implications beyond Oklahoma?

The decision in McGirt v. Oklahoma technically only involves the Creek Nation; however, the Cherokee, Choctaw, Chickasaw, and Seminole Nations—the other members of the so-called Five “Civilized” Tribes of the southeast—have very similar histories and treaties of 1866 (Reconstruction treaties) to the Creek Nation’s. As a result of this decision, they should also have their jurisdictional sovereignty restored as well over the 19 million acres of land in eastern Oklahoma that their combined reservations comprise.


 

Outside of Oklahoma, it’s much harder to say but I’m optimistic. The majority opinion emphasizes that “each tribe’s treaties must be considered on their own terms,” which is essentially an attempt to keep the ruling relatively narrow. But this is still the most important federal Indian law case of the 21st century; some say even of the last 50 years.

The understanding of the principles of tribal sovereignty and emphasis on treaty rights articulated in this decision are likely to have positive implications for all manner of Indian law cases in the future. I think we’ll continue to see Justice Gorsuch lead the way in this area of law; the kind of legacy-defining leadership Ruth Bader Ginsburg brought to the Court in gender discrimination cases, Neil Gorsuch is starting to bring to federal Indian law cases. It’s an exciting time.


Alexandra Stern was a 2018–19 Stanford Humanities Center Dissertation Prize Fellow and is the incoming ACLS Postdoctoral Fellow and substitute assistant professor at the City College of New York, where she will teach 19th century American and Native American history.